Extreme Pr0n - One Year On

Analysis One year on from the passage of the extreme porn laws, and it would appear that the worst fears of those who campaigned against them have, in the main, not been realised. At the same time, the case for driving a coach and horses through some basic principles of English Law feels equally unmade.

A year ago this week, ss63-68 of the Criminal Justice and Immigration Bill 2008 came into effect. This law made it an offence for an individual in future to possess material deemed as "extreme porn", described as images that depicted "explicit realistic extreme acts" – such as necrophilia, bestiality or acts that were life-threatening or likely to cause serious harm to intimate body parts - pornographic (produced for the purposes of sexual arousal), and "grossly offensive, disgusting or otherwise of an obscene character".

That is actually quite a high hurdle to cross, as material may tick the box on one or two counts – yet still remain OK to possess because it doesn’t fulfil the final criterion.

ACPO, sensing a legal quagmire that could easily see police officer’s time sucked into endless debate about what sort of material a jury would consider to be grossly offensive, put out its own guidance. This suggested that the police should prosecute extreme porn when they found it – but that they should not waste time and resource going on a witch-hunt looking for it.

Thus the number of cases that have actually reached the courts in the last year has been limited. El Reg has maintained a database of cases reported publicly or otherwise brought to our attention, and we can provide the top line figures here.

Over the last 12 months, there have been approximately 26 cases involving extreme porn: the approximation lies in the fact that we have some evidence that police have been using the charge as a "quick and dirty" means to deal with individuals selling dodgy (animal) DVDs – and that would inflate the overall tally by an unknown number of cases.

Otherwise, this is in line with the official expectation of around thirty cases in the first year.

The majority of cases have been in respect of images downloaded to PC – but mobile phone porn also has a good showing.

Almost without exception, extreme porn has been an add-on charge. Of the 26 cases reported, 24 have involved individuals being prosecuted for other serious offences – from drug dealing, to making indecent images, to indecency – and only two have been exclusively about extreme porn.

Those two included the first ever case, brought in St Helens, after a man was reported to the police for images found on his PC by a co-worker, and one of the most recent cases: the "Frosties Tiger" case reported in North Wales.

In only one case – the Frosties Tiger case – have the police actually gone looking for extreme porn.

In terms of content, details are given in just 17 of the cases reported. These reveal an interesting trend: 14 of those cases were for animal porn: one was for a mix of adult and animal porn; just two were brought in respect of adult porn alone. In other words, far from acting as a brake on the sort of extreme adult porn that advocates of the law claimed that it would, the extreme porn law appears to have mutated very quickly into the "Safeguarding Vulnerable Animals Act".

Whether this will remain the case in 2010 is still to be seen.

When the legislation was debated in the Lords, Baroness Miller expressed some concern that it would be used by Police Forces to get people who they could not get under other legislation. On the whole, this fear would appear not to have materialised.

There are two possible exceptions to this. First, the use of the law to chase up illicit sellers of dodgy DVDs – if substantiated – is a use of the law that was not foreseen by the legislators. Distributing obscene/extreme DVDs is an offence under the Obscene Publications Act. However, it is likely to be easier to obtain a conviction on a possession charge, and some police forces may choose to go this route.

The second exception, which has still to play out to a conclusion in a court of law, relates to the Frosties Tiger case. The defendant – the first, as far as we are aware, to plead not guilty – was charged on two counts. The first was thrown out after it was revealed that the police had not passed on to the CPS the soundtrack of the Tiger clip, which clearly delineated the clip as "not realistic".

A spokesman for North Wales police spoke to El Reg yesterday and stressed that the officers involved had acted in good faith and with an honest belief that the clip was extreme porn, with or without the soundtrack.

The second extreme porn charge will be heard in March – and following that, it is likely that a wider debate will open up on police actions in this case.

On the whole, therefore, the worst fears have not been realised. On the other hand, once a principle is breached, government has a habit of returning to ask for more – and so it has been with the principle of possession. Last year, government legislated on possession again, this time making it an offence to possess a cartoon that depicted illicit acts with children.

Concerns remain that as each "loophole" gets plugged, government is all too ready to move on to the next, widening the net of censorship further and further. ®